Blackstone Headwaters Coal., Inc. v. Gallo Builders, Inc.
| Decision Date | 26 April 2021 |
| Docket Number | No. 19-2095,19-2095 |
| Parties | The BLACKSTONE HEADWATERS COALITION, INC., Plaintiff, Appellant, v. GALLO BUILDERS, INC.; Arboretum Village, LLC; Steven A. Gallo; and Robert H. Gallo, Defendants, Appellees. |
| Court | U.S. Court of Appeals — First Circuit |
James P. Vander Salm, with whom Law Office of James P. Vander Salm was on brief, for appellant.
William D. Jalkut, Worcester, MA, with whom Fletcher Tilton P.C. was on brief, for appellees.
Before Howard, Chief Judge, Barron, Circuit Judge, and Katzmann, Judge.*
In May 2016, the Blackstone Headwaters Coalition, Inc. ("Blackstone"), a non-profit environmental organization, sued four defendants (two companies, Gallo Builders, Inc. ("Gallo Builders") and Arboretum Village, LLC ("Arboretum Village"); and two individuals, Steven Gallo and Robert Gallo) involved in the development of a residential construction site in Worcester, Massachusetts. Blackstone brought the suit in the District of Massachusetts pursuant to the citizen suit provision of the Federal Water Pollution Control Act, 33 U.S.C. § 1365(a), which is better known as the Federal Clean Water Act, 33 U.S.C. § 1251 et seq. ("the Federal CWA").
The suit alleged in Count I of Blackstone's complaint that Gallo Builders, Steven Gallo, and Robert Gallo had violated the Federal CWA based on a failure by Gallo Builders to obtain from the U.S. Environmental Protection Agency ("EPA") what is known as a Construction General Permit, which the Federal CWA and certain of its implementing regulations allegedly required that company to have due to its connection to the work that was being done at the construction site in Worcester. See 33 U.S.C. § 1342 ; 40 C.F.R. §§ 122.26(b)(14)(x), 122.28 ; 2012 National Pollutant Discharge Elimination System General Permit for Discharges from Construction Activities § 1.1.a ("Construction General Permit").1 The suit alleged in Count II of Blackstone's complaint that all four defendants -- Gallo Builders, Arboretum Village, Robert Gallo, and Steven Gallo -- had violated the Federal CWA and certain of its implementing regulations by failing to prevent sediment-laden stormwater discharges from flowing from that construction site into waters that lead to the Blackstone River.
The District Court granted summary judgment in the defendants' favor as to the first of these two claims. The District Court ruled that, because Arboretum Village had the requisite Construction General Permit, Gallo Builders, Steven Gallo, and Robert Gallo had committed at most a "technical violation" of the Federal CWA and its implementing regulations in failing to secure such a permit for Gallo Builders and that a violation of that kind was not itself actionable via the Federal CWA's citizen suit provision.
The District Court also granted summary judgment to the defendants on Blackstone's other claim, which was set forth in Count II of the complaint. The District Court based this ruling on section 309(g)(6)(A)(ii) of the Federal CWA, codified at 33 U.S.C. § 1319(g)(6)(A)(ii). That provision of the Federal CWA bars an otherwise permissible citizen suit under that same statute from going forward if a state government has already commenced and is diligently prosecuting a sufficiently related enforcement action under a law comparable to section 309(g) of the Federal CWA. See id.
The District Court concluded that this preclusion bar in the Federal CWA applied here because of a prior enforcement action that the Massachusetts Department of Environmental Protection ("the MassDEP") had brought against Arboretum Village based on alleged sediment-laden stormwater discharges at the construction site. In that same order, the District Court also denied Blackstone's cross-motion for summary judgment, in which Blackstone had sought a ruling that, as a matter of law, the MassDEP's prior enforcement action against Arboretum Village did not trigger the statutory preclusion bar in the case that Blackstone was bringing.
Blackstone now appeals from these rulings. We affirm in part and reverse in part.2
The following facts are not in dispute. Since approximately 2006, the four defendants -- Gallo Builders, Arboretum Village, Steven Gallo, and Robert Gallo -- have been collectively involved in constructing a large residential development known as Arboretum Village Estates at a site in Worcester, Massachusetts. In June 2013, an analyst for the MassDEP who was monitoring the site for compliance with Massachusetts state environmental laws reported having observed "[d]ischarge(s) of silt-laden runoff (measured from 200-645 Nephelometric Turbidity Units (‘NTUs’))3 from unstable, eroded suspended soils at the Site to an unnamed, perennial stream ... [that feeds into] the Blackstone River." The MassDEP thereafter issued what is known as a Unilateral Administrative Order ("UAO"), which named Arboretum Village as respondent on June 21, 2013; identified various violations that it had committed at the site; threatened to impose civil penalties on the company; and ordered that it undertake a number of remedial actions.4
Construction at the site came to a halt in the wake of the UAO. Arboretum Village thereafter administratively appealed the UAO to the MassDEP's Office of Appeals and Dispute Resolution.
In late 2014, with the administrative appeal of the UAO pending, the MassDEP and Arboretum Village executed a settlement in the form of an Administrative Consent Order with Penalty ("ACOP"). The MassDEP's Commissioner approved the ACOP in a Final Decision on December 22, 2014. The Final Decision explained that, under the ACOP, Arboretum Village would be required, among other things, to "pay an $8,000.00 civil administrative penalty to the Commonwealth," to undertake certain remedial measures at the site, and to agree to "pay stipulated penalties and/or be subject to additional high level enforcement action from the [MassDEP] if any further discharges of turbid stormwater runoff to wetlands resource areas in excess of 150 NTUs occur."
More than a year later, on May 6, 2016, Blackstone filed this suit in the District of Massachusetts under the citizen suit provision of the Federal CWA. See 33 U.S.C. § 1365(a). Blackstone's "mission is to restore and protect water quality and wildlife habitat in the Blackstone River ... and its tributaries." Its members use and enjoy the Blackstone River and adjacent waters "for recreation, sightseeing, wildlife observation, and other activities," and it claims to "have a recreational, aesthetic, historical, and environmental interest" in those waters.
Blackstone alleged in Count I of its complaint that Gallo Builders, Robert Gallo, and Steven Gallo had violated 33 U.S.C. §§ 1311(a), 1342, and accompanying regulations, 40 C.F.R. §§ 122.26(b)(14)(x), 122.28, by failing to obtain a Construction General Permit for Gallo Builders from the EPA for the site at issue, given that Gallo Builders was an operator of the construction site and that the site disturbed five or more acres of land and discharged pollutants from a point source into waters of the United States. Blackstone alleged in Count II of the complaint that Gallo Builders, Arboretum Village, Robert Gallo, and Stephen Gallo had violated 33 U.S.C. §§ 1311(a), (e), 1365(f)(1), (7), and 1342 by failing to comply with numerous provisions of the Construction General Permit that Arboretum Village had obtained from the EPA due to "longstanding and habitual neglect of erosion and sediment control" at the construction site.
With respect to the latter claim, Blackstone alleged that "[a]s a result of Defendants' [Federal] CWA violations, sediment-laden stormwater runoff from the Site is polluting waters of the United States, particularly the Blackstone River, its tributaries, and wetlands adjacent to those tributaries." Blackstone alleged that sediment-laden discharges had occurred "on days including but not limited to October 16, 2015, January 10, 2016, February 3, 2016, February 16, 2016, February 24, 2016, February 25, 2016, March 1, 2016, and April 7, 2016."
Blackstone sought a declaratory judgment that the defendants were in violation of the Federal CWA by both failing to obtain Construction General Permit coverage for Gallo Builders and by violating the conditions of the Construction General Permit held by Arboretum Village. Blackstone also sought an injunction prohibiting further violations of the Federal CWA, requiring that the defendants restore any polluted wetlands and waters, and requiring that the defendants report future issues with stormwater discharges at the site to the EPA and to Blackstone. In addition, Blackstone sought an assessment of civil penalties under section 309(d) of the Federal CWA, 33 U.S.C. § 1319(d), and an award of attorneys' fees.
On August 30, 2016, all four defendants jointly moved to dismiss both claims that Blackstone had brought against them in its suit on the ground that each of the claims was barred by the statutory preclusion provision of the Federal CWA set forth in section 309(g)(6)(A)(ii), which bars "civil penalty action[s]" brought by either the federal government under section 309(d) or by citizens via citizen suits insofar as such actions concern "any violation ... with respect to which a State has commenced and is diligently prosecuting an action under a State law comparable this subsection." 33 U.S.C. § 1319(g)(6)(A)(ii). The motion also sought the dismissal of the claim set forth in Count I of the complaint, which concerned Construction General Permit coverage, on the independent ground that Arboretum Village alone had operational control over the construction site and thus that only it needed to obtain (and had already obtained) a Construction General Permit from the EPA for the site.
The District Court denied the defendants' motion to dismiss Blackstone's two claims but instructed the parties to engage in a limited period of discovery concerning whether section 309(g)(6)(A)(ii) of the Federal CWA...
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Blackstone Headwaters Coal., Inc. v. Gallo Builders, Inc.
...defendants involved in the development of a construction site in Worcester, Massachusetts. See Blackstone Headwaters Coal., Inc. v. Gallo Builders, Inc., 995 F.3d 274, 293 (1st Cir.), vacated, 15 F.4th 1179 (1st Cir. 2021). Blackstone thereafter requested that we reconsider our decision in ......
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The Blackstone Headwaters Coal. v. Gallo Builders, Inc.
...in the now-vacated panel opinion in this case, we reverse the grant of summary judgment as to Count I of Blackstone's complaint. See id. at 293-94. We refer the reader to the now-vacated panel opinion for a detailed recounting of the events that precipitated Blackstone's suit and the proced......